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The Importance to identify the "terms and purposes" of a Trust in Ohio

January 22, 2020, by Daniel McGowan, on Probate Law and Procedure |

The Importance to Identify the "terms and purposes" of the Trust

Pursuant to Ohio Rev.Code sec. 5804.01 and 5804.02, the creation of a Trust requires the existence of a Settlor, a Trustee, and an ascertainable Beneficiary.  However, it does not require the existence of a corpus (see Ohio Rev.Code sec 5804.02(D) or the execution of a Trust Instrument.  Indeed, Ohio Rev.Code sec. 5804.07 specifically allows for the creation of an oral Trust, so long as the terms are established by clear and convincing evidence.  

Ohio Rev.Code sec. 5801.01(V) defines "terms of a Trust" as being the manifestation of the Settlor's intent regarding a Trust's provisions, as expressed in the Trust instrument or as may be established by other evidence that would be admissible in a judicial proceeding. 

A "Trust Instrument" pursuant to Ohio Rev. Code sec. 5801.01(W), is an instrument executed by the Settlor that contains terms of the Trust, and any amendments to that instrument.  The Trust instrument serves as clear and convincing evidence of the Settlor's intent; however, it does not necessarily incorporate all of the terms of the Trust.